And, as you may know, the President is opposed to Prop 8 and he’s for gay marriage, but he isn’t convinced that gay marriage is a federal issue, or that Prop 8 is unconstitutional, so he’s not sure he wants to file a brief opposing Prop 8 when it comes to the Supreme Court. Well, this pretzel logic is now being used by anti-gay bigots to help defend Prop 8 in court.

As you’ve heard, there’s been some pressure on the Obama administration to file a “friend of the court” brief from the Obama Justice Department declaring its view is that Proposition 8 is unconstitutional. Obama has come out for gay marriage while claiming its legal status should be left to the states to decide. However, he has not said whether he believes Prop 8 crosses the line into unconstitutionality — a position that can coexist with believing the states should ultimately decide these questions. Some gay advocates would like to see this because they believe it will help push the Supreme Court to issue a broad ruling along those lines. The White House won’t say what it will do with regard to the case.

Opponents of gay marriage, however, are not being as reticent — they are directly declaring that Obama’s own words buttress their case that Prop 8 should be upheld. In their brief in the case of Hollingsworth v. Perry, the Prop 8 case that will be heard by the Court this spring, the petitioners cite two quotes from Obama. On page 27, they quote Obama acknowledging in an interview last year that many people “feel very strongly” about preserving the traditional definition of marriage because they “care about families.” And on page 60, they quote Obama disclaiming any desire to “nationalize the issue” of gay marriage — in effect claiming Obama as their ally in the argument that Prop 8 should not be struck down.

I wrote just this morning that I was concerned that the President’s reticence, for lack of a better word, about Prop 8 might be used against him and us. And I was right. The President’s waffling (and I’m sorry, it’s waffling, and that’s the way everyone is taking it) on the issue of Prop 8’s constitutionality is backfiring on both him and (potentially) our civil rights.

I get that the White House has its reasons for not wanting to file a brief. I don’t get that such a position is justified or tenable. And I most certainly get that the position is starting to backfire.

At this point, the White House has to file a brief, if only to clarify what the President meant – they have no choice now that the President’s own words are being used against us. And if that brief isn’t a full-throated opposition to Prop 8’s constitutionality, and a full-throated endorsement of marriage as a federal issue, then I think they and we are going to have a bad month this coming March.

John AravosisFollow me on Twitter: @aravosis | @americablog | @americabloggay | Facebook | Instagram | Google+ | LinkedIn. John Aravosis is the Executive Editor of AMERICAblog, which he founded in 2004. He has a joint law degree (JD) and masters in Foreign Service from Georgetown; and has worked in the US Senate, World Bank, Children's Defense Fund, the United Nations Development Programme, and as a stringer for the Economist. He is a frequent TV pundit, having appeared on the O'Reilly Factor, Hardball, World News Tonight, Nightline, AM Joy & Reliable Sources, among others. John lives in New York City, and is the cofounder of TimeToResign.com. Bio, article archive.

“This is what comes of playing cute with religious bigots.” I would have used the word ‘pandering.’

Bill_Perdue

Obama has to do more than just file a brief.

Obama, more than anyone else, is responsible for the passage of Prop 8 in the first place. During most of the summer and fall of 2008 opposition to Prop 8 was leading, if narrowly. (1) Then Obama went on MTV and attended the election eve bigot fest sponsored by Rick Warren and said that he opposed same sex marriage because ‘gawd’s in the mix”. “”I believe marriage is between a man and a woman. I am not in favor of gay marriage.” (2)

What Obama did was to galvanize and validate the bigotry of catholic, evangelical and mormon voters. The polls flipped at the last minute because of a huge campaign by the bigots to use Obama’s bigoted opposition to marriage, we lost, unexpectedly and unnecessarily.

In 2012, four years into a failed presidency with massive unemployment and poverty haunting the nation, Obama had another election eve evolution, but it’s not enough. As long as Bill Clinton’s DOMA is on the books we’re second class citizens. Period, full stop.

Don’t kid yourself. Our rights have always been a popularity contest. We’ve had a recent boost on that front which drives the current progress. I hope our leaders among the gay rights organizations don’t squander the moment.

Don Chandler

oh dear, i’m wrong. it’s was upheld in california and was overturned at the federal level. that makes it stickier.

Badgerite

Having read Ted Olsen and David Boise impressive brief I just don’t see that allowing states to stand in the way of the fundamental right of a gay person to marry their mate ( because that is what we are talking about, the right to marry at all because if a gay person doesn’t marry another gay person, who are they supposed to marry?) is an option that is allowed under the Constitution. ‘They feel strongly about this’, ….So! ‘They care about families’ ….so they want to get in the way of gays forming families. There simply is no rational reason for their objections. None. There is no harm. Period.

Don Chandler

If it’s only a state rights issue, why is the supreme court hearing arguments? California has already found prop 8 in violation of civil rights…you have to chime in mr president because the supreme court is making it its business.

Exactly so, Becca, exactly so. One wonders what Obama’s response would have been if it was Loving v. Virginia that was coming up before the Supreme Court. Would he have said that inter-racial marriage was for the states to decide? (Especially given the fact that he is the product of an inter-racial marriage?)
Somehow, I highly doubt that. On the other hand, the man is a consumate politician, and who knows? And that’s not a compliment. As far is Obama is concerned, there is no “there” there.

But…but..he said the word “gay” in his inaugural speech..who cares if he didnt mean it, and said the very next day that it was a states right issue.
be a good little gay and go away now. (I speak as a gay man engaged to a man in Colombia, so I know what I am talking about.

FLL

On the previous thread, I said that if Obama didn’t file a brief attacking by the end of March, he would look like shit on a soda cracker. With this new information, I take back the part about the end of March. Since the opponents of marriage equality have just included Obama’s ill-advised statements about “states rights” from last year, and have included it in their own brief, no one has the luxury of extra time anymore. Obama was foolish to have ever championed states rights. He never needed to have mentioned it at all. It’s obvious that the individual states define marriage law, but it’s just as obvious that the job of the federal judiciary is to guard the Constitution from unconstitutional state laws.

I don’t know whether Obama was pandering to conservative voters in swing states last year (hoping to get their electoral votes), but by opening his big mouth in support of states rights, Obama was pretending that the federal judiciary (including the Supreme Court) has no business interfering in state laws that regulate marriage. Did he fancy that Loving v. Virginia was a misguided decision? Whatever Obama’s motive, it’s his mess and he gets to clean it up, and as a result of the recent brief from Prop 8 supporters, it’s all turned into a fire that’s spreading quickly. The inauguration made it clear that Obama wants to distance himself from the Religious Right, but last year’s mess is coming back to haunt him. This is what comes of playing cute with religious bigots.

And furthermore, a state’s vote on its own internal laws was influenced heavily by money sent in from other states and from a foreign sovereign religious entity (the Roman Catholic Church) through the airing of deliberately misleading, false, and slanderous political advertising and direct voter lobbying.

If as they claim this is a matter for states to decide, why is it legal for people in Utah (for instance) to be calling California voters and to be paying for TV commercials on California broadcast stations?

Phil

Even more precisely, it was taken away by a legally sanctioned mob action.

kurtsteinbach

Equal Rights should never be put up for a vote!

nicho

More precisely, a pre-existing human right was recognized as a legal right. That legal recognition was taken away — and the human right once again is violated by the state.

ricmarc

a right was given and then it was taken away. that is unconstitutional. end of debate

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